Littles v. Kirk

168 A.D.2d 757, 564 N.Y.S.2d 213, 1990 N.Y. App. Div. LEXIS 15254

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Ulster County) to review two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner admitted at the hearing that, although he was given a direct order to be on time for the count, he arrived after the gate was closed and after the whistle for the count had been blown. This testimony, in addition to the misbehavior report, constitutes substantial evidence to support the determination that petitioner violated the disciplinary rules set forth in the first misbehavior report (see, Matter of Perez v Wilmot, 67 NY2d 615, 616), and any questions of credibility were for the Hearing Officer to resolve (see, Matter of Hernandez v LeFevre, 150 AD2d 954, lv denied 74 NY2d 615). Petitioner’s own testimony and the second misbehavior report also provide substantial evidence to support the determination that petitioner was in an unauthorized location at an unauthorized time and was late for call-out (see, People ex rel. Vega v Smith, 66 NY2d 130, 139-140). Finally, there is no merit to petitioner’s contention that the Hearing Officers were not impartial (see, Matter of Diaz v Coughlin, 143 AD2d 485).

Determinations confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Weiss, Mercure and Harvey, JJ., concur.